Judge: William A. Crowfoot, Case: 20STCV30578, Date: 2022-10-28 Tentative Ruling

Case Number: 20STCV30578    Hearing Date: October 28, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On August 12, 2020, plaintiff Mark Nathanson (“Plaintiff”) filed this action against defendants Costco Wholesale Corporation (“Defendant”), Willie Curry-Barnes, Greg Carter II, Gary McElmurry, and Robert Fox.  Plaintiff alleges that on August 16, 2018, he slipped and fell inside Defendant’s store in Hawthorne, California. 

On August 12, 2022, Defendant filed this motion for a protective order and sanctions in response to Plaintiff’s deposition notice for Defendant’s person most knowledgeable (“PMK”).  Defendant contends that Plaintiff’s deposition notice contains categories of testimony that are not reasonably calculated to lead to the discovery of admissible evidence (Testimony Subject Matter Nos. 4, 11, 12, 13, and 14) as well as categories of testimony that are grossly vague, ambiguous, overbroad, not reasonably limited in scope, time, subject matter, or location and invade the privacy rights of third parties (Testimony Subject Matter Nos. 4, 11, and 12.)  Defendant also contends that the associated requests for production of documents are vague, ambiguous, overbroad, not reasonably limited in scope, time, subject matter or location, invade the privacy rights of third parties, and seek documents that are irrelevant or protected by the attorney-client privilege and attorney work-product doctrine (Request for Production Nos. 14, 15, 24, 25, 31-33, 35, 36, 37).  Defendant seeks monetary sanctions against Plaintiff and counsel of record in the amount of $3,240.

On September 28, 2022, the Court continued the hearing to allow the parties to submit supplemental briefs.  Plaintiff and Defendant each submitted a supplemental brief on October 14, 2022.   

II.          LEGAL STANDARD

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.  (Code Civ. Proc., § 2025.420, subd. (a).)  The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.  (Code Civ. Proc., § 2025.420, subd. (b).)  The motion shall be accompanied by a meet and confer declaration.  (Id., subd. (a).)  The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.420, subd. (h).)   

III.        DISCUSSION

Defendant has specifically declined to produce a witness to provide testimony in response to Testimony Subject Nos. 4 and 11-14 identified in Plaintiff’s deposition notice of Defendant’s PMK.  Defendant has also refused to provide documents responsive to RFP Nos. 14, 15, 24, 25, 31-33, and 35-37.  These categories of testimony and documents can be separated into two general areas of inquiry.  Testimony Subject No. 4, 11, and 12 and RFP Nos. 14, 15, 36, and 37 seek testimony from a person most knowledgeable of all complaints and injuries arising from “any wet floor” at Defendant’s premises and all legal actions resulting from slip and fall incidents sustained on the floor of Defendant’s premises within the five-year period leading up to the date of Plaintiff’s incident.  Testimony Subject Nos. 13 and 14 and RFP Nos. 24, 25, 31-33, and 35 relate to Defendant’s construction plans of its store in Hawthorne and any violations of any Building & Safety Codes. 

Defendant argues that preparing a designated witness to testify regarding other incidents would take dozens of hours to complete and disrupt its business operations.  “The party, deponent, or any other affected natural person or organization that seeks a protective order regarding the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.”  (Code Civ. Proc., § 2025.420, subd. (c).)  Here Defendant claims that in order to access those documents, an employee would have to run a search, manually click into each populated result, comb through the available documents, and then print each one for review.  But this assertion is completely unsupported by any evidence. 

Defendant also argues that information about other incidents would invade the privacy interests of its members and the attorney-client privilege/attorney work-product doctrine.  This is unpersuasive.  Identifying or personal details of Defendant’s members’ can be redacted and Defendant does not meet its burden to show that other incident information is privileged.  Defense counsel merely declares that Gallagher Bassett Services, Inc. is a third party administrator “tasked with the responsibility for coordinating and managing further handling of potential claims and litigation on [Defendant]’s behalf.”  (Schmitt Decl., ¶ 12.)  This is not detailed enough to show how the documents responsive to Plaintiff’s requests for production are privileged. 

Defendant contends that information about other incidents is admissible only if the incident involved the same or substantially similar circumstances.  Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, 860-861.)  Here, Plaintiff’s incident involved a slip and fall with water occurring in an aisle towards the back of the store near the water bottle displays at or around closing time.  Therefore, Defendant argues it should not be required to produce a witness to testify regarding other incidents that are entirely unrelated to the facts in this action, such as accidents near the bathroom or food court, accidents involving a liquid other than water, and accidents resulting from a person slipping on a substance dropped by a third person or spilled by the person who slipped. 

Defendant argues that even if Plaintiff alleged that Defendant’s flooring in the Hawthorne store was not sufficiently slip-resistant, any argument about its general operations in offering samples is an argument about its “mode of operation”, which was rejected in Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472.  This is not accurate.  In Moore, the court held a plaintiff retained the burden of proving an owner had knowledge of the dangerous condition and could not rely on the fact that a defendant made specific business choice which allowed the hazard causing the injury to exist.  (Id. at p. 479.)  The Moore court further stated, “However, this is not to say that a store owner’s business choices do not impact the negligence analysis.  If the store owner’s practices create a higher risk that dangerous conditions will exist, ordinary care will require a corresponding increase in precautions.”  (Ibid.) 

In opposition, Plaintiff argues that information about prior incidents and the nature of Defendant’s flooring material are highly relevant to the issue of prior notice and reasonably calculated to lead to the discovery of admissible evidence, especially as Plaintiff’s alternative theory of liability is predicated on the slipperiness of Defendant’s warehouse flooring, even in the absence of any fluid.  (Compl., ¶¶ 15-16.)  Plaintiff suggests that the requested testimony and documents may reveal that the common factor contributing to incidents such as Plaintiff’s slip and fall is Defendant’s flooring choice. 

In light of the foregoing arguments, the Court rules on Defendant’s motion for a protective order as follows:

Category No. 4: The PERSON(s) Most Knowledgeable concerning all complaints made by any PERSON(s) regarding any wet floor at the PREMISES, within the five-year period leading up to the date of the INCIDENT.  GRANTED in part.  The PMK testimony will be limited to complaints made regarding interior floors at the PREMISES (not including the food court or restrooms) made wet specifically by water. 

Category No. 11: The PERSON(s) Most Knowledgeable concerning all injury incidents occurring on the PREMISES regarding any wet floor at the PREMISES, within the five-year period leading up to the date of the INCIDENT.  GRANTED in part.  The PMK testimony will be limited to injury incidents occurring on interior floors at the PREMISES (not including the food court or restrooms) made wet specifically by water.

Category No. 12: The PERSON(s) Most Knowledgeable concerning all legal actions brought against YOU for injuries sustained on the floor of the PREMISES as a result of slip & fall incidents which occurred within the five-year period leading up to the date of the INCIDENT.  GRANTED.  

Category No. 13: The PERSON(s) Most Knowledgeable concerning construction plans for the floor of the PREMISES.  GRANTED.

Category No. 14: The PERSON(s) Most Knowledgeable concerning whether the area of the PREMISES where the INCIDENT occurred was in violation of any Building & Safety Codes at the time of the INCIDENT.  GRANTED. 

RFP No. 14: ANY AND ALL DOCUMENTS for the five-year period leading up to the date of the INCIDENT which reflect all injury incidents, including but not limited to slip & fall accidents occurring on the PREMISES: GRANTED in part.  Only documents relating to slip and fall accidents occurring in the five-year period leading up to Plaintiff’s incident need to be produced.

RFP No. 15: ANY AND ALL DOCUMENTS for the five-year period leading up to the date of the INCIDENT, which reflect all legal actions brought against YOU for injuries sustained on the PREMISES because of trip & fall incidents.  GRANTED. This is not a trip and fall case. 

RFP No. 24: ALL DOCUMENTS which RELATE TO ALL construction plans for the construction of the floor at the PREMISES.  GRANTED.

RFP No. 25: ALL DOCUMENTS which reflect whether the area of the PREMISES was in violation of ANY Building & Safety Codes at the time of the INCIDENT.  GRANTED. 

RFP No. 31: ANY and ALL DOCUMENTS which identify the type and composition of the material(s) on the FLOOR at the PREMISES.  GRANTED.

RFP No. 32: All DOCUMENTS which relate to the schedule and/or frequency of the application of anti-slip texturing to the FLOOR, at the PREMISES, prior to the INCIDENT.  GRANTED in part; only documents from the five-year period leading up to Plaintiff’s incident need to be produced.

RFP No. 33: All DOCUMENTS which relate to the method used in YOUR application of anti-slip texturing to the FLOOR, at the PREMISES, prior to the INCIDENT.  GRANTED in part; only documents from the five-year period leading up to Plaintiff’s incident need to be produced.

RFP No. 35: All DOCUMENTS which relate to test methods related to slip resistance, particularly any ANSI A 137.1 Section 9.6 or AcuTestTM.  GRANTED. 

RFP No. 36: All DOCUMENTS which relate to any complaints, made prior to the INCIDENT, regarding the lack of slip resistance of the FLOOR at the PROPERTY.  GRANTED in part; only documents from the five-year period leading up to Plaintiff’s incident need to be produced.

RFP No. 37: All DOCUMENTS which relate to any complaints, made prior to the INCIDENT, regarding the lack of slip resistance of the FLOOR at any of YOUR properties which uses flooring materials that are comprised of the same or similar material as the FLOOR at the PROPERTY.  GRANTED.

IV.         CONCLUSION

Defendant’s motion for a protective order is GRANTED as to Testimony Subject Nos. 12, 13, and 14, and RFP Nos. 15, 24, 25, 31, 35 and 37.  The motion is granted IN PART respect to RFP Nos. 14, 32, 33, and 36; only documents from the five-year period leading up to Plaintiff’s incident need to be produced. 

Defendant’s motion for a protective order is GRANTED in part as to Testimony Subject Nos. 4 and 11, to complaints and injuries related to floors made wet specifically by water.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.